A special education legal resource discussing case law, news, practical advocacy advice, and developments in state and federal laws, statutes and regulations. Postings include insight and sometimes humor from Charles P. Fox, a Chicago, Illinois attorney who is also a parent of child with special needs, and other guest authors. Email: [email protected]

December 02, 2014

It seems that there is an increasing trend that more students are having trouble going to school and staying in class as a result of have migraine headaches. One of the unfortunate consequences for children and teenagers who suffer from chronic headaches, or more specifically migraines, is that they miss a lot of school days. When this happens, the family and school need to work together, with help and support from the student’s medical team, to find a balance where the student can attend school as often as possible, plan for when he or she is unable to attend, and ultimately help the student make progress in his or her academic program.

Unfortunately, this fine balancing act can become very contentious. Although some school districts seem to recognize the medical validity of school absences due to migraines, in worst cases other school districts call truancy officers. There does seem to be an increas in district becoming more leary of medical notes for conditions that are not readily observable. Even in those cases where school districts recognize that accommodations need to be made, where and how these students will be educated can become the subject of dispute. A recent court case validates the efforts of a Pennsylvania school district to educate a high school student with refractory migraine headaches who had a 504 Plan by enrolling him in a “cyber school.” The family argued that their son should have been on an IEP where he could have received additional supports and services to help him attend school. Additionally, the family claimed that enrollment in a cyber school denied their son FAPE, or a free appropriate public education, because the cyber school was not the least restrictive environment. The family’s claims, however, were ultimately rejected by the court, which found that given the student’s inability to attend school and the school district's well-documented and numerous attempts to accommodate the student, the “cyber school” was his least restrictive environment and an appropriate placement.

October 17, 2014

In an editorial that appeared in TheWall Street Journal a year ago, school district attorney Miriam Kurtzig Freedman challenged the practice of inclusion of special needs students in regular education classrooms because of her belief that the presence of some of these students is compromising the education of their non-disabled peers. More specifically, Ms. Freedman urges parents of children without disabilities to speak out about how children with special needs are “short changing” the education of their children. The reasons for inclusion, according to Ms. Freedman are based more on “civil rights and social justice” and not on “best education practices.” The practice of inclusion is “entrenched” and “politically correct.” Ms. Freedman’s argument, if heeded, would set back the right of disabled children to a free appropriate public education by more than 30 years.

September 19, 2012

It is always nice when district's go out of their way to educate parents on the need to provide a 10 day notice prior to making a unilateral placment see
Download 2500_0001. What this notice neglects to inform parents is that the statute carves out certain exceptions to the need to give notice, such as, when the parent is illiterate,the school district "prevented the parent from providing notice" or providing the notice "would likely result in serious emotional harm to the child." 20 USC section 1412(a)(10)(C)(iii)(III)(iv) [the good stuff is always in the fine print]. Nor does this notice inform parents that even if notice is given late, that there is a line of cases that allow for reimbursement after the 10 day notice period has run, or emphasizing that this provision is discretionary using the word "may" not "shall". While I subscribe no ill-intent to this notice, I am sure that it would be used against a parent if they failed to comply with the exact terms, as expressed in the notice, even though it does not fully advise parents of all of their legal rights. Thanks school district (and their attorney who undoubtably drew this form up), but let the parents' attorneys do their job protecting and fully advising parents of their rights.

August 17, 2012

The father of a child represented by this firm forwarded information about a very special kibbutz in Israel. As you may know, an Israeli kibbutz is an agricultural communal settlement whose residents collectively live and work together. The kibbutz this client forwarded information on is called Kishorit, and it is unique because it is designed to meet the needs of adults with developmental disabilities.

In the United States, parents agonize over finding appropriate placements for their adult children in the community which will enable them to function as independently and productively as possible. Kishorit is different, even among the kibbutz movement. Its 140 residents are expected to engage fully in the kibbutz community. Almost 97% of the residents are employed, either through the micro-enterprises run by the kibbutz, or in nearby communities. Staff and volunteers eat, work, and socialize with the residents.

Despite the unique program offered at Kishorit, Israel is behind the United States in its efforts to meet the needs of the disabled. Dr. Joav Merrick, the medical director of the Division of Mental Retardation of the Ministry of Social Affairs and chairman and medical director of Israel’s National Institute of Child Health and Human Development, immigrated to Israel some 20 years ago. Upon his arrival in Israel, he was shocked to find 5-year-old children with Down’s syndrome effectively warehoused in neonatal hospitals—abandoned at birth by their parents with no other placement options available. It’s been an uphill battle since then to get Israeli’s to change their attitudes toward the disabled.

June 27, 2012

The Government Accountability Office (GAO) recently released a report indicating that Federal intervention is needed to ensure that students with disabilities have access to their right to a Free Appropriate Public Education in the charter school setting. Charter Schools must adhere to Federal law, including the IDEA. However, the report indicates that fewer students with disabilities enrolled in public charter schools (8.2%) than enrolled in traditional public schools (11.2%). Compared to traditional public schools, charter schools enrolled a lower percentage of students with intellectual disabilities (0.84% compared to 0.45%).

We have seen this problem in our office with the influx of charters being granted by strapped school districts. Unfortunately some charter schools misrepresent their ability to program for students with disabilities and some students are losing a year plus of a FAPE because they are not being appropriately supported in the charter school setting. The situation can also be confused further because every state has different laws as to who is the LEA (local education agency). When school districts get sued for the failure to provide a FAPE in a charter school, the finger pointing can often begin. The Department of Education said in response to the report that it would issue new guidance to charter schools on their obligations to serve all students.

April 27, 2012

It is extremely difficult for youth who have been living in correctional facilities to return to their communities, families, schools, and employment. Because the youth are very likely to be returning to the very same environments into which they got into trouble in the first place (e.g., poverty, chaotic schools, substance abuse issues, or dysfunctional families), their rate of recidivism is extremely high. According a new report from Project Forum released last December, approximately 55% of youth return to detention facilities or prisons within 12 months of their release. And that number is even higher for youth with disabilities. As one researcher commented, “the most difficult part of many youths’ experience in the juvenile justice system is not being confined, but returning home.”

How many youth are incarcerated in our country, and what disabilities do they have? In 2007, more than 87,000 youths were held in juvenile correctional facilities; an additional 3,650 were in state prisons. Of these numbers, youth with disabilities are overrepresented. One study showed that whereas only 9% of youth in our nation’s schools are eligible for special education services, an estimated 37% of youth in the juvenile justice system receive services under IDEA. Some reports suggest that the number of incarcerated youths with special needs in fact ranges from 30 to 70% of the population. Of incarcerated youth, between 65% and 90% could be diagnosed with at least one mental health disorder. Additionally, it is estimated that approximately 10% of incarcerated youth have learning disabilities, 50% have emotional disorders, 12% have intellectual disabilities, and as many as 50% have AD/HD.

These youthful offenders have likely been served poorly by their home schools. They have also likely been served poorly through the educational programs offered by the juvenile justice system. Even though incarcerated, students who receive special education services are still entitled to FAPE (free and appropriate public education). But the provision of FAPE can be problematic for youthful offenders. Incarcerated youth can be moved frequently, IEPs and educational records (if they are even obtained from home schools) do not always follow the offenders, families are minimally involved with educational planning, and some of the disciplinary procedures used for offenders are unhelpful to them educationally. This is regrettable, because we know that youths who progress academically while incarcerated will have lower recidivism rates.

Despite the glum numbers, we know youth with disabilities who are engaged in work or school during the first three months of their release are 3.2 times less likely to return to custody and 2.5 times more likely to remain working or enrolled in school 12 months after leaving the correctional facility. These youth can successfully be returned to society. Thus, it is imperative that good transition programs are developed for these youth to ensure successful outcomes for them.

To that end, Project Forum conducted a review of programs in four states (Arizona, Georgia, Hawaii, and Oregon) that offer what are considered “best practices” in their reentry programs for incarcerated youths. Historically, re-entry programs for youth tend to be fragmented, and too many offenders fall between the proverbial cracks of the system. One of the main problems is that youth leaving correctional facilities are aging out of child-oriented social programs and being funneled into adult-oriented services. Many of these adult programs are developmentally inappropriate for youthful offenders, who can be left floundering.

To address these gaps in service, each state identified by Project Forum offered comprehensive, multi-disciplinary wrap-around programs to ensure that the needs of youth are met upon release. Key to each of the programs is the use of a transition coordinator, who establishes relationships with the youths before their release, ensures that community-based services are set in the community upon release, and then continues to follow the youth once they are back in the community. In addition, each state is addressing the educational, employment, social and behavioral, substance abuse, housing, and transportation needs of recently released youth.

It is not inevitable that incarcerated youth will return to detention facilities, but the odds are stacked against them. But as demonstrated by the Project Forum report, youth can be successfully transitioned back into their communities. However, it will take a lot of effort on the part of the juvenile justice system, communities, and social services agencies as well as the released youths and their families to succeed.

December 02, 2011

A mother in the Bronx is arguing against the social promotion of her 11-year-old son with special needs because she believes he is not ready for 6th grade. What the mother is asking for seems reasonable—if her son has failed to master 5th grade work, why would he be able to do 6th grade work? Yet, the school’s desire to socially promote the student is unusual. But is the alternative, grade retention, a more viable option?

Social promotion became popular in the 1970s due to fears that its alternative; namely, retention, led to issues with self-esteem for those students who were “flunked” a grade. However, social promotion fell into disfavor in the 1980s with the recognition that students who were receiving high school diplomas were ill­-prepared for either college or work. Social promotion went on to became a political issue when President Clinton, in his 1999 State of the Union Address, declared that, “No child should graduate from high school with a diploma he or she can’t read. We do our children no favors when we allow them to pass from grade to grade without mastering the material.”

July 22, 2008

The U.S. Access Board, a little known Federal agency that facilitates access to public buildings, has published guidelines and presented resources to make public spaces, specifically schools, more acoustically sound for students with disabilities. It is easy to overlook the importance of acoustics which center on two key concepts, Signal to Noise Ratio ("SNR") and Reverberation Time. SNR deals with how available sound is to a listener in an environment (classroom) and reverberation rates deal with the amount of sound reverberation that occurs even after a given sound stops. Download AcousticsTR.pdf

January 08, 2007

I often receive questions about requirements and resources for home schooling. These questions are a byproduct of the fact that parents sometimes withdraw their children from school instead of fighting annual battles with their local school district. I recently discovered this resource for Illinois homeschoolers, it may also be useful for others outside of Illinois as well except the statutory provisions will likely differ. This site does not deal with the limited obligations of school districts to parentally placed children under IDEA 2004.

June 16, 2006

According to the law special education is a set of services and is not a place. Well truer words were never spoken. It is not a place for many children that I represent, it is many places from year to year. I have numerous children who I represent that come to me having been in five different buildings, albeit in the same "program" in five years. It gives new meaning to the phrase "mobile classroom". When the parent protests they are of course told that special education is not a place...